Jones v. United States of America
Filing
3
ORDER signed by Judge J.P. Stadtmueller on 9/6/2017. By 10/6/2017, Respondent to file an answer or other appropriate motion regarding Petitioner's Motion to Vacate. By 11/6/2017, Petitioner to file response to Respondent's submission. If Respondent files a motion in lieu of an answer, Respondent may file a reply brief by 11/21/2017. See Order. (cc: all counsel, via mail to Jessie L. Jones at Memphis Federal Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JESSIE L. JONES,
v.
Petitioner,
Civil Case No. 17-CV-884-JPS
Criminal Case No. 14-CR-226-2-JPS
UNITED STATES OF AMERICA,
Respondent.
ORDER
The petitioner, Jessie L. Jones (“Jones”), pleaded guilty to conspiracy
to commit Hobbs Act robbery. Case No. 14-CR-226-2-JPS (“Criminal Case”),
(Docket #22). On June 18, 2015, the Court sentenced Jones to 151 months’
imprisonment. Criminal Case, (Docket #50). His sentence was later
adjusted. Criminal Case, (Docket #75). Jones has never filed an appeal in his
criminal case. The instant motion was filed on June 26, 2017. (Docket #1).
Jones asserts four grounds for relief: 1) improper application of
controlled substance offense as a career offender predicate in light of Mathis
v. United States, 136 S. Ct. 2243 (2016); 2) violation of due process and equal
protection by applying co-defendant’s actions to enhance Jones’ sentence;
3) the sentencing enhancements applied to Jones were not established by
clear and convincing evidence as required by United States v. Kikumura, 918
F.2d 1084 (3d Cir. 1990); and 4) ineffective assistance of counsel with regard
to entering a plea agreement which allowed Jones’ sentence to be enhanced
for the uncharged conduct of a co-actor. Id. at 4-8.
Jones’ motion is now before the Court for screening:
If it plainly appears from the motion, any attached
exhibits, and the record of the prior proceedings that the
moving party is not entitled to relief, the judge must dismiss
the motion and direct the clerk to notify the moving party. If
the motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
order.
Rule 4(b), Rules Governing § 2255 Proceedings.
The Court begins by addressing the timeliness of Jones’ motion. 28
U.S.C. § 2255(f) provides that there is a one-year limitations period in which
to file a motion seeking 28 U.S.C. § 2255 relief. That limitations period runs
from the date on which the judgment of conviction becomes final. “[T]he
Supreme Court has held that in the context of postconviction relief, finality
attaches when the Supreme Court ‘affirms a conviction on the merits on
direct review or denies a petition for a writ of certiorari, or when the time
for filing a certiorari petition expires.’” Robinson v. United States, 416 F.3d
645, 647 (7th Cir. 2005) (internal citations omitted). The current operative
judgment in Jones’ case was issued on December 15, 2015. Jones’ motion is
thus untimely on its face, having been filed more than six months after the
limitations period expired.
Jones recognizes this and attempts to save each ground. As to
Ground One, Jones asserts that it is timely because Mathis was decided only
last year. The limitations period usually runs from the date of final
judgment, but can also run from “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review[.]” 28 U.S.C. § 2255(f)(3). Mathis, however, did not
announce a new right such that Section 2255(f)(3) is triggered. See Brooks v.
United States, No. 17-2168, 2017 WL 3315266, at *3-4 (C.D. Ill. Aug. 3, 2017)
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(arriving at holding by analyzing Mathis under Teague v. Lane, 489 U.S. 288
(1989), and collecting cases in agreement). Thus, Ground One remains
untimely.
As to Ground Two, Jones contends that his tardiness should be
excused because “[c]ounsel did not give adequate advice or direction
regarding the appeal process and failed to file a notice of appeal.” (Docket
#1 at 6). Similarly, for Ground Four, Jones qualifies his lateness by claiming
that “I have learned that ineffective assistance claims are held for 2255
filings[,] although at the time I did not even know this.” Id. at 9. These are,
in essence, requests that the limitations period be equitably tolled. See
United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Equitable tolling
is “‘reserved for extraordinary circumstances far beyond the litigant’s
control that prevented timely filing.’” Socha v. Boughton, 763 F.3d 674, 684
(7th Cir. 2014) (quoting Nolan v. United States, 358 F.3d 480, 484 (7th Cir.
2004)). To be entitled to equitable tolling, a petitioner bears the burden of
establishing: “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely
filing.” Socha, 763 F.3d at 683-84 (citing Holland v. Florida, 560 U.S. 631, 649
(2010); Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008)).
The Seventh Circuit has recently cautioned district courts that
equitable tolling is not a “chimera—something that exists only in the
imagination.” Socha, 763 F.3d at 684. Rather, despite not having approved
of equitable tolling of a habeas corpus petition for many years, see Tucker,
538 F.3d at 734, the Seventh Circuit now notes that courts “are not free . . .
to regard equitable tolling as something that exists in name only; this would
render the Supreme Court’s explicit approval of equitable tolling in Holland
a nullity.” Socha, 763 F.3d at 684 (citing McQuiggin v. Perkins, 133 S. Ct. 1924,
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1931 (2013)). Equitable tolling could thus save Grounds Two and Four.
Though not explicitly raised by him, the Court will also permit Jones to
defend Ground One on the basis of equitable tolling. In light of these
potential exceptions to Jones’ otherwise untimely motion, the Court is
reluctant to dismiss it on timeliness grounds without the benefit of further
submissions from Jones and the government. See, e.g., Gildon v. Bowen, 384
F.3d 883 (7th Cir. 2004) (“it is difficult to conceive of a situation where a
claim of equitable tolling would be clear on the face of the petition,” thus,
it is generally accepted that the Court should not dismiss a petition sua
sponte on timeliness grounds, without input from the parties; also noting
that the limitations period of 28 U.S.C. § 2244 “is an affirmative defense,
[which] the state has the burden of” proving) (citing Acosta v. Artuz, 221
F.3d 117, 121–22 (2d Cir. 2000); United States v. Burke, 504 U.S. 229, 246 (1992)
(Scalia, J. concurring)); see also Ray v. Clements, 700 F.3d 993, 1006 (7th Cir.
2012).
Accordingly, the Court will allow Jones’ motion to proceed beyond
this initial screening stage. Nonetheless, the petition remains on life support
because it is likely time-barred. But, as just noted, that is an argument the
government will have to make, after which Jones may respond. It is also
possible that Jones simply does not state a claim for relief. These are issues
that the government may wish to address in responding to Jones § 2255
motion.1
The lack of an appeal bears on another procedural hurdle for Jones—
procedural default. See Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008).
The government may raise this, and any other appropriate procedural defense, in
his response to Jones’ motion.
1
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The Court has not yet mentioned Ground Three because it is
inarguably meritless, so no procedural analysis is necessary. The Seventh
Circuit has already rejected Jones’ Kikumura-style claim:
McGowan also asserts that since the district court’s
finding regarding the crack sales fueled the hefty sentence
imposed on him, the court should have made its finding by
clear and convincing evidence, not a mere preponderance,
which is the normal standard of proof at sentencing. Before
United States v. Booker, 543 U.S. 220 . . . (2005), we expressed
some sympathy for the argument that a higher standard of
proof should be required when a finding results in a
considerable increase in a defendant’s sentence. See, e.g.,
United States v. Corbin, 998 F.2d 1377, 1387 (7th Cir. 1993). But
Booker, which made the guidelines advisory, extinguished any
need for differing standards of proof. United States v. Fisher,
502 F.3d 293, 306 (3d Cir. 2007) (overruling United States v.
Kikumura, 918 F.2d 1084 (3d Cir. 1990)); United States v.
Santiago, 495 F.3d 820, 824 (7th Cir. 2007); United States v.
Reuter, 463 F.3d 792, 793 (7th Cir. 2006).
United States v. McGowan, 288 F. App’x 288, 291-92 (7th Cir. 2008).
In sum, it “plainly appears from the motion…that [Jones] is not
entitled to relief” on Ground Three. Rule 4(b), Rules Governing § 2255
Proceedings. That ground will stand dismissed. Grounds One, Two, and
Four will proceed with briefing, but the Court warns Jones that he must
pass the substantial procedural hurdles outlined above before it will
consider the merits of those grounds.
Under Rule 4(b) of the Rules Governing § 2255 Proceedings, because
the Court has not dismissed the case in its entirety, it “must order the
United States Attorney to file an answer, motion, or other response within
a fixed time[.]” Accordingly, the Court will direct the government to file an
answer to Jones’ motion or appropriate motion not later than October 6,
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2017. If the government files an answer, then Jones must file his reply,
see Rule 5(d) of the Rules Governing § 2255 Proceedings, not later than
November 6, 2017. Likewise, if the government files a motion in lieu of an
answer, Jones will have until November 6, 2017, to file his response, and the
government may reply thereto on or before November 21, 2017.
Accordingly,
IT IS ORDERED that, on or before October 6, 2017, the government
shall file an answer to Petitioner’s motion to vacate (Docket #1), or other
appropriate motion;
IT IS FURTHER ORDERED that Petitioner shall file a response to
the government’s submission not later than November 6, 2017; and
IT IS FURTHER ORDERED that, if the government files a motion
in lieu of an answer, it may file a reply brief to the petitioner’s response not
later than November 21, 2017.
Dated at Milwaukee, Wisconsin, this 6th day of September, 2017.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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